' SYED HASSAN AZHAR RIZVI, J.---These Constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan; 1973 filed by (1) Sikandar A. Karim bearing C.P. No,D-413 of 2005 on 26-4-2005 and (2) Mrs. Sabeena Farooq C P. No,D-600 of 2005 on 11-5-2005 for the quashment of the proceedings arising out in NAB Reference No,28 of 2002 pending against the above named petitioners before the Accountability Court-II, Sindh, Karachi. The petitioners have further prayed for passing the order to restrain the respondent No,2 i.e, the Judge Accountability Court-II, Karachi, from proceedings otherwise then strictly in accordance with law and not to harass the petitioners in any manner whatsoever in nature and pass an order for restoration/ discharging of the properties purchased by petitioners Viz: (Plot No,B-9/A, SITE, Karachi. (2) B/20/A. SITE, Karachi, (3)
Bungalow No,10/41/1, 42/3 Z-43 to Z-47, Hussain Cooperative Housing Society. Alamgir Road Karachi and (4) Bungalow No,10A. Block-A. Kathiawar Cooperative Housing Society, Karachi.
2. On 29-4-2004 and 12-1-2005 both the petitioners have filed separate applications under section 265-K, Cr.P.C. Before the Accountability Court-II Karachi in NAB Reference No,28 of 2002. The learned Judge Accountability Court-II, Karachi by common order dated 16th March, 2005 rejected the applications of both the petitioners.
3. The petitioner Mr. Sikandar A. Karim on 27.7.2004 obtained protective bail before arrest upto 26th August, 2004 from this Court in C.P. No,D-671 of 2004 same was confirmed on 21-10-2010 by this Court. On 15-12-2004 the petitioner Sikandar A. Karaim filed C.P. No,1412 of 2004 for quashment of the proceedings arising out in NAB Reference No,28 of 2002, but on 18-1-2005 the petitioner's counsel did not press the said petition on the ground that an application for quashment was filed before NAB Court, consequently the said C.P. No,D-1412 of 2004 was dismissed as not pressed. The petitioners have filed present petitions being C.P. No, D-413 of 2005 on 26-4-2004 and C.P No,D-600 of 2005 on 11-5-2005.
4. Constitution Petition No,413 of 2005 was fixed before this Court on 31-5-2005 when learned ADGP, NAB sought 15 days time to engage proper Advocate to represent NAB in the matter and this Court adjourned the matter, but proceedings before the NAB Court were stayed till next date. However for one reason or the other since 31-5-2005 the matter was adjourned till 30-9-2010 mostly at the request of petitioner's counsel. On 30-9-2010 after hearing Mr. M. Ashraf Kazi, learned counsel for the petitioners and Mr. Muhammad Aslam Butt learned DGP, NAB both the petitions were dismissed along with the listed applications and the Accountability Court No,II, Karachi was directed to conclude the trial within three months from the date of order and report compliance.
5. The brief facts of both the petitions relates to the famous scam started in the years seventies/eighties of Messrs T.J. Ibrahim and Co. And Messrs Alliance Motors (Pvt.) Ltd., wherein by inducing the public at large on the pretext of high profits billions of rupees were dishonestly and fraudulently collected and misappropriated. The NAB authorities submitted interim Reference before the Accountability Court on 17-9-2002 so also in the supplementary Reference dated 3-12- 2002 the name of the petitioners were not appeared in the array of the accused persons, however in the final Reference submitted before Accountability Court on 9-4-2003 names of many other persons were added in column of accused and the names of the petitioners were mentioned in the final Reference. The allegations against the petitioners in the said Reference are that when Messrs T.J. Ibrahim and Co. And Messrs Alliance Motors (Pvt.) Ltd., were in the process of winding up through Official Assignee, the petitioners managed to grab following properties through fraudulent means as Benamidar by making nominal payment through some other accused, including Muhammad Tayyab:--
(1) Plot No,B-20/A, Site, Karachi. (One acre)
(2) Plot No,B-9/A, SITE, Karachi
(3) Bungalow No,10-A, the Kathiawar Cooperative Society, Shahrah-e-Faisal, Karachi (1000 Sq.
Yards).
(4) ' Bungalow No,10/41/1, Hussain Cooperative Housing Society, Alamgir Road, Karachi.
' Bungalow No,63/B, Phase-II, Defence Housing Authority, Karachi.
(5)
(6) Two Cars Honda Accord Model 1986.
' In this manner the petitioners are beneficiaries involved in embezzlement of Rs,3571.15 millions collected from 48,250 distributors/ investors of Messrs T.J. Ibrahim and Co. And Messrs Alliance Motors (Pvt.) Ltd., on the pretext of giving high profits.
6. The petitioners/accused persons made some payments to Muhammad Tayyab accused No,12 in NAB Reference No,28 of 2002 and took the possession of the aforesaid properties without making full payments in active connivance and in collusion with accused No,12 Muhammad Tayyab entered in deal of purchase of properties detailed above after winding up the aforesaid companies, while the companies were under liquidation process in the High Court of Sindh at Karachi. Initially the petitioners took the possession of the aforesaid properties and without making full payments managed to knock the doors of this Court and succeeded in obtaining favourable ex parte decision by forging the signatures of original title holders and by concealing the facts.
However, in some cases the learned Official Assignee/Official Liquidator who was intervened the Court's decision and got stopped the further deals except two properties viz. Bungalow No,10-A, the Kathiawar Cooperative Society Shahrah-e-Faisal, Karachi could not be finalized with the petitioner, but the accused Muhammad Tayyab handed over the possession of the said Bungalow to the petitioners Sikandar A. Karrim and his sister-in-law Mrs. Sabeena Farooq after getting partial price from them. The title documents of the aforesaid property were maneuvered in the name of petitioner Mrs Sabeena Farooq through her attorney Petitioner Sikandar A. Karim who by concealing the facts got ex parte decision and got registered the Conveyance Deed dated 6-6- 1993 before the Sub-Registrar T-Division, Karachi in absence of title holder Mr. Feroze Iqbal. This fact had been confirmed/reported by the Honorary General Secretary the Kathiawar Cooperative Society, vide letter dated 14-9-1995 addressed to the Official Assignee.
7. Property Plot No,20-A, Site, Karachi purchased by Sikandar A. Karim from Muhammad Tayyab accused No,12 in NAB Reference No,28 of 2002 for a consideration of Rs,25,00,000 through Irrevocable Power of Attorney in favour of the petitioner. The Official Assignee of this Court had sealed the properties purported to the J.M. Nos.1/89 and 74/89.
8. As regards property i.e, Bungalow No,10/41/1, Hussaini Cooperative Society, Alamgir, Road, Karachi, 1010 square yards, the Official Assignee in mid 1988 attached and sealed the property in liquidation proceeding J.M. Nos.1/89 and 74/89. A suit was filed for and on behalf of the petitioner/appellant bearing Suit No,1277 of 1989 before this Court vide order dated 11-10-1992. The aforesaid property was purchased from Mst. Roshan Bano wife of Muhammad Ibrahim through her attorney Muhammad Jamal Khan for an amount of Rs,40,00,000 in the name of nominee of Mr. Muhammad Arif being Benamidar and possession was obtained.
9. Property i.e, Bungalow No,63/B Phase-II, Defence Housing Authority Karachi in possession of the petitioner having obtained the same through his nominee Huma Ibrahim wife of Muhammad Ibrahim through a Sale Agreement. The deal of the property could not be finalized and the petitioners have acquired the possession of the properties in connivance and collusion with the main accused Muhammad Tayyab. The aforementioned properties have been purchased from the funds of Messrs Alliance Motors (Pvt.) Ltd., and the petitioners have acquired the same through illegal deal as Benami owner.
10 Heard learned counsel for the petitioner Mr. Muhammad Ashraf Kazi and Mr. Muhammad Aslam Butt, D.P.-G , NAB and perused the relevant documents.
11. Mr. Muhammad Ashraf Kazi, learned counsel for the petitioners contended that there is no evidence against the petitioners to connect them that in the offence and the trial of the Reference No,28 of 2002 will not end in conviction of the petitioners as the applicants/accused persons have neither been associates with the principle accused nor there is iota of evidence against them.
12. It is also argued by the learned counsel for the petitioners that the petitioners are lawful purchasers of the properties alleged by the respondent No,1 and no manipulation in the process of purchase thereof on part of the petitioners has been pin pointed through out the investigation.
13. The learned counsel for the petitioners challenged the findings of the respondent No,2 the Accountability Court-II, Karachi and submits that during the process of liquidation the petitioners were not entered in the sale agreement and all the five movable/immovable properties were purchased in 1988, whereas both the companies were wound up under the orders of this Court vide order dated 4-12-1989 and the advertisement notice had been published within 12 days thereafter.
He further argued that the petitioners paid the market prices prevalent at that time and the petitioners have not purchased the properties on throw away prices as observed by the Accountability Court-II, Karachi while rejecting the petitioners' applications under section 256-K, Cr.
P.C.
14. It is also contended by the learned counsel for the petitioners that Originally Reference No,28 of 2002 was signed by the Chairman NAB was filed in Court on 17-9-2002 and that is the only legal Reference to be tried by the Accountability Court-II, Karachi, therefore, the proceedings against the petitioners before the Accountability Court-II through Final Reference dated 9-4-2003 are completely ultra wires, illegal and liable to be quashed.
15. It was also argued by the learned counsel for the petitioners that in the Final Reference dated 9- 4-2003, 190 prosecution witnesses were cited. On 28-2-2003 the Accountability Court had framed charge against Muhammad Saleem Yousuf and 28 others and 15 witnesses were examined from 16-8-2003 till 10-12-2004 by the trial Court and no one amongst them has deposed against the petitioners.
16. It was contended by the learned counsel for the petitioners that in section 5(d) in the NAB Ordinance, which was promulgated on 16-11-1999 "Associates" means "Any individual who is or has been managing the affairs or keeping accounts of accused or who enjoys or has been enjoyed any benefit from the assets referred to above." It is further contended by the learned counsel for the petitioners that there was no punishment of corruption and corrupt practices as an "Associates" from 16-11-1999 to 23-11-2002. The amendment was brought about in the NAB Ordinance on 23-11- 2002 introducing the provision of subsection (xii) of section 9(a) of the NAB Ordinance; "(xii) if he aids, assists, debts, attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi)".
17. Learned counsel for the petitioners has urged that the dispute with regard to the purchase of certain immovable properties by the petitioners is ostensible nature having not an iota to imagine that the petitioners are involved in any kind of criminal activities. The learned counsel for the petitioners submits that the learned Judge, Accountability Court-II, Karachi has not appreciated the material points argued by the petitioners' counsel in its true prospectus, which has resulted in serious miscarriage of justice. He further urged that no incriminating material worth the name could be collected and allegations of corruption, malpractice, fraudulent gains is not available except the vague and the sketchy allegation as contemplated by the prosecution in the final report. It is also contended by the learned counsel that petitioners would not be convicted even if entire material is produced before the trial Court.
18. The learned counsel for the petitioners has, also challenged the authorization of Inspector G.A.
Jatoi, the I.O. Of the case who has filed the interim and supplementary reports before the NAB Court.
19. Learned counsel for the petitioners has placed reliance upon PLD 2004 SC page-298. 1999 NLR Criminal page 528(sic), PLD 2009 SC page-404, 2003 PCr.LJ page 1598, 1975 SCMR page-165. The case law relied upon by the learned counsel for the petitioners are distinguishable to the points involved in the matter.
20. On the other hand Mr. Muhammad Aslam Butt, learned Deputy Prosecutor-General, NAB has supported the impugned common order dated 16th March, 2005 by which the Accountability Court No,II. Karachi when the applications under section 265-K, Cr.P.C. Were rejected.
21. The learned Deputy Prosecutor-General has relied upon 2007 NLR page-980, 2006 SCMR page- 276, 2006 SCMR page 1192, PLD 2001 SC page 607.
22. We have heard the learned counsel for the parties and have perused the record. We found that amendments in section 5(d) vide NAB (Amendments) Ordinance, 2002 were made on 23-11-2002 and amendments in section 9(a)(xii) were introduced by the NAB (Amendments) Ordinance No,IV of 2000, dated 3-2-2000. Whereas the NAB Reference No,28 of 2002 bearing signatures of AVM (Retired) Acting Chairman Mr. Muhammad Salimuddin submitted on 9-4-2003 by G.A. Jatoi Inspector/Investigating Officer of NAB Authorities in Accountability Court No,II, Karachi against the petitioners and others. Inspector/I.O. G.A. Jatoi was duly authorized by the Director General NAB Sindh Karachi to hold formal investigation and submit report under section 18(c)(g) read with section 24(b) NAB Ordinance, 1999 together with evidence and other material collected against Directors of Alliance Motors and others who are prima-facie involved in commission of scheduled offences of corruption and corrupt practices punishable under NAB Ordinance, 1999. The said I.O.
Submitted Interim Investigation Report on 2-9-2002 under section 18(c)(g) read with section 24(b) of the NAB Ordinance, 1999, Supplementary Reference under section 18(c)(g) read with section 24(b) on 17-9-2002 and the Final Investigating Report dated 28-2-2003. Hence it is clear that NAB Authorities filed the reference against the petitioners on 9-4-2003 when the amendments in section 5(d) section 9(a)(xii) NAB Ordinance were already made. Hence we are not convinced by the contentions of the learned counsel for the petitioners that when the NAB Reference No,28 of 2002 was filed against the petitioner in the Accountability Court No, II, Karachi under subsection
(xii) of section 9(a) and section 5(d) of the NAB Ordinance were not offences under the corruption and corrupt practices.
23. The contentions of the learned counsel for the petitioners that the dispute of the matter with regard to the purchase of certain properties by the petitioners is of civil nature, having not an iota to imagine that the petitioners are involved in any kind of criminal activities is not correct. Specific role is assigned to the petitioners by the NAB Authorities in the reference which falls within the definition of forgery, cheating, deceiving public at large through corruption and corrupt practices as the properties which are the subject-matter of the Reference and the subject properties were under liquidation by the order of this Court and the Official Assignee was the Official Liquidator.
Who intervened the Court decision and got stop the further deals. Such material allegations attract the provisions of section 9 of the NAB Ordinance which is punishable under Section 10 of the NAB Ordinance, 1999. In the cases of (1) Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276,
(2) Ahmed Saeed v. The State and another 1996 SCMR 186, (3) Haji Sardar Khalid Saleem v.
Muhammad Ashraf and others 2006 SCMR 1192, (4) Talib Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and (5) The Deputy Inspector General of Police, Lahore and others v. Anis-ur- Rehman Khan PLD 1985 SC 134 it has been held by the Hon'ble Supreme Court of Pakistan that continuance of criminal proceedings are not barred even if civil proceedings in respect of same subject are pending in Courts and both such proceedings can proceed simultaneously.
24. With regard to the contention of the learned counsel for the petitioners that there is no material against the petitioners and the question of any conviction does not arise we have examined the record of the case. The case against petitioners rest upon documentary evidence, which the NAB authorities will produce its witnesses. We are clear in our mind that there is sufficient material against the petitioners to connect them with the alleged offence. The Court under the garb of section 265-K, Cr.P.C. Could not deprive the prosecution from providing opportunity to produce evidence. The powers under section 265-K, Cr.P.C. Is always conditional and can be invoked only if the Court considers that there is no probability of an accused to be convicted of any offences with which he is charged.
25. We are fully in agreement with the findings of the learned Judge, Accountability Court-II, Karachi that prima facie there is enough material against the petitioners to connect them with the offence by purchasing certain properties from Muhammad Tayyab accused No,12 in NAB Reference No,28 of 2002 as stated above from funds of Messrs T.J. Ibraim and Co. And Messrs Alliance Motors (Pvt.) Ltd., at that time both such companies were in the process of liquidation under the orders of this Court dated 4-12-1989. The petitioner prima facie is alleged to have obtained the properties in deceitful manner.
26. These are the reasons of our short order dated 30-9-2010 by which we dismissed the petitions.
27. The observations made hereinabove are of tentative in nature and the trial Court shall not be influenced by any of the such observation and decide the case of the petitioners on its own merits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.